United States v. Clark

• Decision Date: 01 May 1891
• Citation: 46 F. 633
• Parties: UNITED STATES v. CLARK.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F. 633

UNITED STATES v. CLARK.

United States District Court, District of Alaska.

May, 1891

C. S Johnson, U.S. Dist. Atty.

Delaney & Gamel, for defendant.

BUGBEE J.

This is a demurrer and motion to quash the indictment, which is in the words and figures following:

'IN THE DISTRICT COURT OF THE UNITED STATES OF AMERICA DISTRICT OF ALASKA.

'The United States vs. J. E. W. Clark.

'U.S. Rev. St. Sec. 5339; Or. Crim. Code, Sec. 506. Of the special November term of the district court of the United States of America within and for the district of Alaska, in the year of our Lord one thousand eight hundred and ninety, begun and held at Sitka, in said district. The grand jurors of the United States of America, selected, impaneled, sworn, and charged within and for the district of Alaska, accuse J. E. W. Clark by this indictment of the crime of murder, committed as follows: The said J. E. W. Clark, at or near Ounga, within the said district of Alaska, and within the jurisdiction of this court, on or about the 13th day of August, in the year of our Lord one thousand eight hundred and ninety, purposely, and of deliberate and premeditated malice, killed George Hemmingway, by then and there shooting him in the body with a double-barreled shot gun; and so the grand jurors, duly selected, impaneled, sworn, and charged, as aforesaid, upon their oaths do say that J. E. W. Clark did then and there murder George Hemmingway in the manner and form aforesaid, contrary to the form of the statutes of the United States of America and of the state of Oregon, made applicable thereto, in such cases made and provided, and against the peace and dignity of the United States.

'C. S. JOHNSON, District Attorney.'

The grounds of objection are: (1) That it appears upon the face of the indictment that it was found under the laws of the state of Oregon, and not under the laws of the United States; (2) that the indictment does not charge a crime under the laws of the United States, and that the allegations thereof are not sufficient to put the defendant upon trial; (3) that the panel of grand jurors who found said indictment is illegal and void, several of the grand jurors being disqualified by reason of service as petit jurors in this court within the past year. Whereupon defendant challenged the array of said grand jury.

The case presents the very important question as to whether the crime of homicide committed within the territory of Alaska is punishable under the statutes of the United States or under those of the state of Oregon. By the terms of the 'Act providing a civil government for Alaska,' passed May 17, 1884, (23 St. at Large, 24,) this court is vested with the criminal jurisdiction of district courts of the United States exercising the jurisdiction of the circuit courts, (section 3,) and with exclusive jurisdiction in all criminal offenses which are capital, (section 7.) The general laws of the state of Oregon in force May 17, 1884, were, by the terms of the organic act, 'declared to be the law in the district so far as the same may be applicable, and not in conflict with the provisions of this act or the laws of the United States,' (section 7;) and the act further declares that 'the laws of the United States, not locally inapplicable to said district, and non inconsistent with the provisions of this act, are hereby extended thereto, ' (section 9.) It is left for the court to decide, as occasion may demand, whether or not any particular law of the United States is or is not 'locally inapplicable' to the district; whether any general law of Oregon is or is not in conflict with the provisions of the organic act or the laws of the United States; and whether it is or is not applicable to the territory of Alaska.

Under this indictment the question first to be considered is as to the applicability of section 5339 of chapter 3, tit. 70, of the Revised Statutes of the United States, entitled, 'Crimes arising within the maritime and territorial jurisdiction of the United States. ' The section is as follows: 'Every person who commits murder * * * within any fort, arsenal, dockyard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States, * * * shall suffer death. ' The statute is silent as to what constitutes the crime of murder, and we must resort to the common law as it stood at the time of the passage of the judiciary act, in 1789, for its definition. U.S. v. Outerbridge, 5 Sawy. 620; U.S. v. Reid, 12 How. 365. The definition of 'murder' commonly found in the books is said to be the willful killing of any subject whatever through malice aforethought. 2 Bish.Crim.Law, § 732. Murder at common law was not divided into degrees, nor do the United States laws make such a division as do the laws of Oregon. Congress has provided that--

'In all criminal causes the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense so charged, provided that such attempt be itself a separate offense. ' Rev. St. U.S. 1035.

It has further provided that--

'Every person who, within any of the places or upon any of the waters described in section 5339, unlawfully and willfully, but without malice, strikes, stabs, wounds, or shoots at, or otherwise injures, another, of which striking, stabbing, wounding, shooting, or other injury such other person dies, either on land or sea, within or without the United States, is guilty of the crime of manslaughter. ' Id. Sec. 5341.

It has also provided that--

'Every person who, within any of the places or upon any of the waters described in section 5339, attempts to commit the crime of murder or manslaughter by any means not constituting the offense of assault with a dangerous weapon, shall be punished by imprisonment,' etc. Id. Sec. 5342.

By the more recent act of March 3, 1875, (Rev. St. Supp. 177,) it is provided--

'That whoever shall be convicted of the crime of manslaughter in any court of the United States in any state or territory, including the District of Columbia, shall be imprisoned,' etc.

A further section of the United States laws is as follows:

'If any offense be committed in any place which has been or may hereafter be ceded to and under the jurisdiction of the United States, which offense is not prohibited, or the punishment thereof is not specially provided for, by any law of the United States, such offense shall be liable to and receive the same punishment as the laws of the state in which such place is situated, now in force, provided for the like offense when committed within the jurisdiction of such state; and no subsequent repeal of any such state law shall affect any prosecution for such offense in any court of the United States. ' Rev. St. U.S. Sec. 5391.

If murder were not prohibited, or the punishment thereof were not specially provided for, by any law of the United States, the crime committed within the territory of Alaska, which was a place 'thereafter ceded to and under the jurisdiction of the United States,' might, under the section last cited and the provisions of the organic act, receive the same punishment as the laws of the state of Oregon then in force provided for the like offense when committed within the jurisdiction of that state. The general laws of the state of Oregon in force May 17, 1884, provide that 'if any person shall purposely and of deliberate malice * * * kill another, such person shall be deemed guilty of murder in the first degree. ' Crim. Code Or., Sec. 506. 'If he shall purposely and maliciously, but without deliberation and premeditation, * * * kill another, he shall be deemed guilty of murder in the second degree. ' Id. Sec. 507. If without malice, express or implied, and without deliberation, upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistable, voluntarily kill another, he shall be deemed guilty of manslaughter. And certain other acts are also enumerated which are declared to constitute the crimes of murder in the second degree and manslaughter. Id. Secs. 507-515. The Oregon laws also provide that the punishment for murder in the first degree is death; for murder in the second degree, imprisonment for life; and for manslaughter, not less than one nor more than fifteen years, and by fine. Id. Secs. 516-518.

It therefore follows that if the laws of the United States above referred to are not locally inapplicable to the district, and not inconsistent with the provisions of the organic act, and if the territory or district of Alaska be a place or district or country under the exclusive jurisdiction of the United States, every person who commits murder therein, (that is, with malice aforethought, willfully kills another,) must suffer death; for under that law his crime is not divisible into two degrees. If he unlawfully and willfully, but without malice, kills another, he is guilty of manslaughter; and, in accordance with the facts shown, he may be convicted of the crime of murder, or of the crime of manslaughter, or of an attempt to commit either.

It is claimed by the prosecution, however, that the laws of the United States are, in this case, locally inapplicable to the district; that they are inconsistent with the organic act and that the territory or district of Alaska is not a place or district of country under the exclusive jurisdiction of the United States, within the meaning of section 5339 of the Revised Statutes of the United States, that the intention of congress was to place it, in a sense, within the jurisdiction of the laws of Oregon; that the general laws of Oregon in force May...